F I L E D

United States Court of Appeals

Tenth Circuit

MAR 28 2003

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT

DAVID MINSHALL,
Plaintiff-Appellee,
v.

Nos. 01-1576 and 02-1049

McGRAW HILL BROADCASTING

COMPANY, INC., doing business as
KMGH, Channel 7,
Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
(D.C. No. 98-M-2694)
David A. Lane, (Mari Newman, with him on the brief), Miller, Lane, Killmer &
Greisen, LLP, Denver, Colorado, for Plaintiff-Appellee.
Henry D. Lederman, (Franklin A. Nachman, with him on the briefs), Littler
Mendelson, Denver, Colorado, for Defendant-Appellant.
Before MURPHY, BALDOCK, and OBRIEN, Circuit Judges.
MURPHY, Circuit Judge.

I.

INTRODUCTION
David Minshall (Minshall) filed this suit against his former employer,

McGraw-Hill Broadcasting Company (McGraw-Hill), alleging that McGrawHill unlawfully discriminated against him on the basis of age in violation of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-634, and
Colo. Rev. Stat. 24-34-401 to -406. Minshall also alleged a claim for
intentional infliction of emotional distress. The district court granted McGrawHill summary judgment on the intentional infliction of emotional distress claim,
which Minshall does not appeal.
After a trial on the merits of Minshalls discrimination claims, a jury
returned a verdict in his favor finding that McGraw-Hill discriminated against
him on the basis of age. Answering special interrogatories, the jury also found
that McGraw-Hills conduct was willful. The jury awarded Minshall back pay in
the amount $212,326.00 and found that the award of back pay should not be
reduced by any failure to mitigate damages. The question of whether Minshall
was entitled to front pay was reserved for the district court. In an advisory
capacity, however, the jury recommended that he be awarded front pay in the
amount of $137,500.00. In a post-trial order, the district court awarded Minshall
front pay in the amount of $137,500.00. The court also awarded $212,326.00 in
liquidated damages and $153,958.00 in attorneys fees.
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McGraw-Hill moved for judgment as a matter of law (JMOL) at the close

of evidence, renewed its motion for JMOL in a post-trial motion, and, in the
alternative, moved for a new trial. McGraw-Hill also moved to alter or amend the
judgment on front pay and back pay. The district court denied McGraw-Hills
motions.
McGraw-Hill appeals the district courts denial of its motions for JMOL,
new trial, and to alter or amend the judgment. Exercising jurisdiction pursuant to
28 U.S.C. 1291, this court affirms the judgment. 1
II.

BACKGROUND
McGraw-Hill does business as KMGH-TV (KMGH) in Denver, Colorado.

Minshall worked as an on-air investigative reporter with KMGH from 1980 until
KMGH decided not to renew his contract on March 10, 1997. At the time KMGH
decided not to renew his contract, Minshall was over 50 years old.
At trial, evidence was introduced that in 1995, Minshall violated an
agreement to protect the anonymity of a source by allowing a document to be
aired showing the sources name. McGraw-Hill introduced evidence that
Minshall appeared visibly intoxicated while accepting an award for a series on
drunk driving at a 1995 Emmy Awards ceremony. Minshall testified that he

McGraw-Hill filed a motion to supplement the record on appeal. Minshall

does not oppose the motion. McGraw-Hills motion is granted.
1

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apologized for his conduct at the Emmy Awards ceremony and admitted that he
was partially at fault for the disclosure of the sources identity. KMGH did not
threaten to terminate Minshall over either of these incidents.
In April 1996, KMGH hired Melissa Klinzing (Klinzing) as News
Director. To promote KMGHs news programs and boost ratings, Klinzing
initiated a news format known as Real Life, Real News. Klinzing designed
Real Life, Real News with the intention of reaching a younger demographic
than that which historically watched KMGH news programs. To achieve this
goal, the cosmetic look of the news programs was altered. Klinzing considered
the physical appearances of the on-air anchors and reporters in making changes to
the overall appearance of the news programs.
Under Klinzings direction, anchors Ernie Bjorkman (Bjorkman) and
Bertha Lynn (Lynn), individuals over the age of 40, were removed from the ten
oclock nightly news and replaced by anchor Natalie Pujo (Pujo) who was
between 20 and 30 years old. Both Bjorkman and Lynn testified that they
believed they were removed from the ten oclock nightly news because of their
age. Ron Allen (Allen), a weatherman at KMGH over the age of 40, testified
that he was also given increasingly less favorable job assignments at KMGH. At
trial, Minshall also introduced evidence of several age-related statements made by
Klinzing in reference to the news format, Minshall, and other on-air news
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personalities who were over the age of 40. McGraw-Hill, however, presented
evidence that reporters Bill Clarke (Clarke) and Paul Reinertson (Reinertson),
who were over 40 years old, received no less on-air time after Klinzing was
employed at KMGH.
Minshalls contract was set to expire in August 1996. Executive Producer
Kathleen Sullivan (Sullivan) testified that she recommended Klinzing not renew
his employment. McGraw-Hill presented evidence that Minshall submitted
several stories late and submitted a report during a ratings period that was
unacceptable. Clarke, a reporter and news anchor, testified that Minshalls scripts
were easily recognized for being incomplete and for containing factual errors.
Anchors Bjorkman and Lynn, however, testified that they were of the
opinion that Minshall was a good reporter. Lynn testified that his scripts were no
worse than other reporters. Allen testified that Minshall was a motivated and
tenacious reporter. Minshall testified that, prior to Klinzings employment, he
had never been informed that his script writing or punctuality was a problem.
Klinzing renewed Minshalls contract for six months in August 1996. She,
however, wrote Minshall a detailed memorandum summarizing her expectations
for his improvement. Klinzing wrote, At the end of the 6 months, if youre
performing up to expected levels, well talk about a new contract. By letter,

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Minshall accepted the conditions of the August 1996 memorandum and the sixmonth contract.
McGraw-Hill presented evidence that, after accepting the six-month
contract, Minshall sometimes failed to attend morning staff meetings, failed to
suggest ideas for new stories, and finished assignments immediately before
deadlines. McGraw-Hill also presented evidence that, while under the six-month
contract, he was assigned to investigate a story for which he failed to interview
any witnesses and tried to use videotape that was not of the reported business.
Further, McGraw-Hill presented evidence that on another story, Minshall
attempted to report about one vehicle while using videotape of another vehicle.
At the end of the six-month contract, Klinzing recommended that
Minshalls contract not be renewed. On March 10, 1997, KMGH decided not to
renew his contract. KMGH instructed Klinzing not to interview anyone under the
age of 40 to replace Minshall.
After KMGH decided not to renew his contract, Minshall chose not to
search for employment as an investigative reporter outside of Denver because he
did not want to relocate his family. Minshall, however, made telephone calls and
sent letters to other television stations in Denver. After failing to obtain
employment as an investigative reporter, he attempted to secure employment in
public relations. A few months later, Minshall was hired by BVP Media to teach
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media training. At BVP Media, he earned approximately $70,000 in salary and

benefits. Minshall, however, quit this job after approximately one year to work as
a self-employed media trainer.
III.

DISCUSSION

A. Motion for JMOL

The district court denied McGraw-Hills motion for JMOL. This court
reviews de novo the denial of a motion for JMOL. Medlock v. Ortho Biotech,
Inc., 164 F.3d 545, 549 (10th Cir. 1999). In reviewing the district courts refusal
to grant JMOL, this court draw[s] all reasonable inferences in favor of the
nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). Further, this court does not weigh the evidence, pass on the credibility
of the witnesses, or substitute [its] conclusions for that of the jury. Medlock,
164 F.3d at 549 (quotation omitted). The district courts refusal to grant JMOL
will only [be] reverse[d] if the evidence points but one way and is susceptible to
no reasonable inferences supporting the party opposing the motion. Id.
(quotation omitted).
1. Age Discrimination Claims
McGraw-Hill argues that Minshall failed to present sufficient evidence to
establish that it discriminated against him on the basis of age when deciding not
to renew his contract. See Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th
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Cir. 1991) (holding that after a full trial on the merits of plaintiffs discrimination
claim, the remaining single overarching issue [is] whether plaintiff adduced
sufficient evidence to warrant a jurys determination that adverse employment
action was taken against him on the basis of age). After reviewing the record as
a whole, this court is satisfied that Minshall offered sufficient evidence on which
the jury could reasonably conclude McGraw-Hills decision not to renew his
contract was impermissibly based on his age.
At trial, McGraw-Hill presented evidence that the decision not to renew the
contract was based on Minshalls poorly written scripts, tardiness, violations of
professional ethics in disclosing the identity of a confidential informant, improper
use of video in stories, and public drunkenness at a 1995 Emmy Awards
ceremony. Minshall, however, presented contrary evidence that created a jury
issue regarding McGraw-Hills purported reasons for not renewing his contract.
Minshall presented the testimony of Lynn that Minshalls scripts were no
worse than any other reporters scripts. Lynn and Bjorkman both testified that
they had never been confused in a newscast by any misspellings in Minshalls
scripts. The evidence presented at trial showed that prior to Klinzings
employment at KMGH, Minshall had never been informed that his spelling or
punctuality was a problem or was grounds for termination. Lynn and Bjorkman,
who worked with Minshall for several years, testified that they thought Minshall
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was a good reporter. Further, Allen testified that he believed Minshall was a
motivated and tenacious reporter.
McGraw-Hill argues that Lynn, Bjorkman, and Allens testimony is
irrelevant because they did not supervise Minshall and likely did not see his
unedited work. While this court does not sit as a super-personnel department
that second-guesses the [defendants] business decisions, . . . evidence indicating
that an employer misjudged an employees performance . . . is, of course, relevant
to the question of whether [the employers] stated reason [for its actions] is . . .
masking prohibited discrimination. Tyler v. Re/Max Mountain States, Inc., 232
F.3d 808, 813-14 (10th Cir. 2000) (quotation omitted). Lynn, Bjorkman, and
Allen each had the opportunity to professionally observe Minshalls work while at
KMGH. Accordingly, their testimony was relevant in assessing the veracity of
McGraw-Hills reasons for not renewing Minshalls contract.
Minshall also presented evidence that he was never threatened with
termination regarding the disclosure of the identity of a confidential informant or
his conduct at the Emmy Awards ceremony. Both of these incidents occurred
over a year before KMGHs decision not to renew Minshalls contract and prior to
Klinzings employment at KMGH.
Finally, Minshall presented evidence that several on-air employees over the
age of 40 were treated adversely while Klinzing was employed at KMGH.
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Specifically, Minshall introduced evidence that both Lynn and Bjorkman, who are
over 40 years old, were removed from the ten oclock nightly newscast and were
replaced by Pujo, a woman in her late twenties or early thirties. Minshall also
introduced evidence that Allen was given less favorable assignments as he aged.
McGraw-Hill argues that because it presented evidence that Clarke and
Reinertson, reporters over 40 years old, had no less on-air time after Klinzing was
employed, the jury could not reasonably infer that Minshalls contract was not
renewed because of his age. The jury, however, could reasonably infer from the
evidence, albeit conflicting, that KMGH was reducing the air time of people over
40 years old and that Minshalls contract was not renewed because of his age.
In addition to introducing evidence to rebut the truthfulness of McGrawHills asserted reasons for not renewing his contract, 2 Minshall introduced
evidence that Klinzing was motivated by age-based animus and was principally
responsible for the non-renewal of his contract. As News Director, Klinzing
developed the news format and was responsible for renewing Minshalls contract.
Klinzing testified that she created the news format, Real Life, Real News, with
McGraw-Hill argues that Minshall failed to present evidence to rebut
each of its stated reasons for not renewing Minshalls contract. While, in general,
an employee must proffer evidence that shows each of the employers
justifications are pretextual . . . when the plaintiff casts substantial doubt on many
of the employers multiple reasons, the jury could reasonably find the employer
lacks credibility. Tyler v. Re/Max Mountain States, Inc., 232 F.3d 808, 814
(10th Cir. 2000). Such is the case here.
2

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the intention of reaching a younger demographic and that she considered the
physical appearance of the on-air anchors and reporters in making overall changes
to the news programs. Allen testified that Klinzing told him not to wear a tie
and to try to go with a younger look. Allen also testified that Klinzing said she
didnt care if older people were watching television and that she was disgusted
when she saw an old fart on television without a shirt. Minshall testified that
Klinzing constantly talked to him about a younger presentation, a more youthful
presentation, and that she wanted sexier stories that would appeal to a younger
audience. Minshall and Lynn both testified that Klinzing asked them about their
ages. Scott Sobel, a former reporter and anchor at KMGH, testified that Klinzing
said Allen was too fucking old for the news format. Finally, Minshall
introduced evidence that Klinzing said, in reference to her father, old people
should die.
McGraw-Hill argues that the jury could not infer that age animus motivated
Klinzings decision not to renew Minshalls contract because she offered him a
six-month contract in August 1996 and others at KMGH agreed with Klinzings
assessment of Minshalls work performance. McGraw-Hill further argues that if
Klinzing was truly motivated by age animus she would have terminated Minshall
in August 1996. Finally, McGraw-Hill argues that Klinzing was pleased with
Minshalls on-air performance. Therefore, McGraw-Hill contends, the jury could
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not have reasonably concluded that Klinzing was motivated by age animus when
she recommended that Minshalls contract not be renewed. While the evidence
could support McGraw-Hills interpretation, the jury reasonably rejected such an
interpretation.
McGraw-Hill also argues that the statements attributed to Klinzing were
stray comments and constitute an insufficient basis from which to draw an
inference of age discrimination. While [i]solated comments, unrelated to the
challenged action, are insufficient to show discriminatory animus in termination
decisions, a plaintiff can show such animus by demonstrat[ing] a nexus between
the allegedly discriminatory statements and the defendants decision to terminate
[the plaintiff]. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.
1994) (holding that [a] causal nexus can be shown if the allegedly discriminatory
comments were directed at the plaintiff, her position, or the defendants policy
which resulted in the adverse action taken against the plaintiff (quotation
omitted)). 3

Minshall argues that he need not establish a nexus between Klinzings

age-related statements and the decision not to renew his contract because he is
only offering the statements as circumstantial evidence of age discrimination.
Because we decide infra that a nexus exists between the majority of Klinzings
comments and the decision not to renew Minshalls contract, and that these agerelated comments are sufficient to support the jurys verdict, we need not address
this argument.
3

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In this case, Klinzings statements regarding the newly-introduced news

format, including her instructions to Minshall and Allen regarding their on-air
presentations, were not stray comments. Minshall argued that his contract was
not renewed because, under the news format, Klinzing did not want to utilize onair reporters over 40 years old. 4 Therefore, there was a nexus between Klinzings
statements with respect to the news format and Klinzings decision not to renew
Minshalls contract.
With respect to Klinzings statement that Allen was too old for the news
format, McGraw-Hill argues that this was a stray comment because it was not
directed at Minshall and there was no connection between Allens loss of air time
and the decision not to renew Minshalls contract. Klinzings statement,
however, pertained to her motivation in developing the news format. Because
Minshall presented evidence that Klinzings decision not to renew his contract
was motivated by her desire to reduce the presence of on-air reporters over 40
years old under the news format, however, there was a nexus between Klinzings
statement regarding Allen and her decision not to renew Minshalls contract.

McGraw-Hill argues that Klinzings comments refer to her goal of

reaching younger viewers, a goal not prohibited by the ADEA. The jury could,
however, reasonably infer from the totality of Klinzings comments that her
decision not to renew Minshalls contract was based on age animus.
4

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Further, Klinzings statements regarding older people watching or being

broadcast on television were not stray comments. Klinzing testified that she
considered the physical appearance of the on-air reporters in making changes to
the overall appearance of the news program. As stated above, there was a nexus
between Klinzings statements made regarding the news format and her decision
not to renew Minshalls contract. Similarly, there was a nexus between these
statements and the decision not to renew Minshalls contract. In contrast,
Klinzings statement that old people should die was a stray comment. It is
undisputed that Klinzing made this statement in reference to her father.
Therefore, there is no connection between this statement and Klinzings decision
not to renew Minshalls contract. 5
Viewing the record as a whole, this court is satisfied that the jury
reasonably concluded that KMGH unlawfully discriminated against Minshall on
the basis of age when it decided not to renew his contract. Accordingly, the
district court did not err in denying McGraw-Hills motion for JMOL.
2. Willfulness under the ADEA
A plaintiff may be awarded liquidated damages under the ADEA if the
defendants violation was willful. 29 U.S.C. 626(b). In this case, the jury

As discussed infra, the district courts admission of this stray comment

did not constitute reversible error.
5

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found that McGraw-Hills violation of the ADEA was willful and the court
awarded liquidated damages. McGraw-Hill argues that the award was in error
because Minshall failed to present sufficient evidence to support the jurys
determination that its violation of the ADEA was willful. Moreover, McGrawHill argues that it presented sufficient evidence that it acted with a good faith
belief that its conduct was lawful.
Under the ADEA, a violation is willful if the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by
the statute. Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993). McGrawHill argues that because Minshall never complained Klinzing was discriminating
against him, it acted on a good faith belief that its decision not to renew his
contract was lawful. Klinzing, however, testified that she was instructed by
KMGH not to hire anyone under the age of 40 to replace Minshall. From this
evidence, the jury could reasonably conclude that McGraw-Hill knew its decision
not to renew Minshalls contract was in violation of the ADEA or acted with
reckless disregard over the matter. Accordingly, the district court did not err in
granting Minshall liquidated damages.
B. Motion for a New Trial
This court reviews the district courts denial of McGraw-Hills new trial
motion for abuse of discretion. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th
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Cir. 1998). This court will reverse the denial of a motion for a new trial only if
the trial court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances. Weese v. Schukman, 98 F.3d 542, 549
(10th Cir. 1996).
When the issue of whether to grant a new trial hinges on the admissibility
of evidence, this court reviews the admission of the evidence for abuse of
discretion. Sanjuan, 160 F.3d at 1296. If the evidence was erroneously
admitted, this court will set aside a jury verdict only if the error prejudicially
affects a substantial right of a party. Id. Further, [e]vidence admitted in error
can only be prejudicial if it can be reasonably concluded that . . . without such
evidence, there would have been a contrary result. Id. (quotation omitted).
1. Statements Made in Connection with Klinzings Deposition
Because Klinzing was no longer an employee of McGraw-Hill and was
outside the district courts subpoena power at the time of trial, excerpts of her
deposition testimony were read to the jury. Outside the presence of the jury,
Minshalls counsel requested permission from the district court to explain to the
jury that Klinzings absence was motivated by her fear of being cross-examined.
The district court denied this request.

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Prior to the introduction of Klinzings deposition testimony, the district

court instructed the jury that Klinzing was in New Jersey and could not be
subpoenaed. The district court instructed the jury as follows:
To the extent that youre able, of course, youre instructed that you
should give the testimony of Miss Klinzing the same weight and
credibility as you would as if she had appeared at the trial.
Minshalls counsel preserved an objection.
Subsequent to the reading of Klinzings testimony, the district court asked
whether there were any portions of the deposition Minshalls counsel wanted read
into the record. He responded, If Ms. Klinzing were here, your Honor, Id crossexamine her, but shes not.
Later during the trial, McGraw-Hills counsel questioned a witness on
redirect: So in this proceeding, we have one person saying it happened, another
person[, Klinzing,] saying it didnt happen; is that right? Minshalls counsel
objected saying, That misstates the evidence. We have a deposition saying it
didnt, and we have a live witness saying it did. The district court responded,
All right. Thats more correct.
At closing argument, Minshalls counsel argued:
But lets talk about the facts that we heard. All right. Because really and
truly, what it comes down to, the key witness on that witness stand, the No.
1 witness that you have to consider in their case never bothered to come to
this courthouse to swear an oath to tell the truth, to walk up to that witness
stand and get cross-examined by me. And thats Melissa Klinzing. Why
isnt Melissa Klinzing here on that witness stand getting cross-examined
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like every other witness in this case? Their excuse is, well, she lived more
than a hundred miles out of the range of subpoena. Cant subpoena her in.
....
The one witness, the main discriminator in this case, mailed it in. Do you
remember in her deposition she accused Dave Minshall: Hes just mailing
it in. No, shes mailing it in, and theyre going to stand up here and ask
you, Oh, well you heard in her deposition where she said blah, blah, blah,
blah. You didnt get to look at her. This court will instruct you, you can
consider the demeanor of a witness on the witness stand and the method of
testimony and you can toss the whole thing in the trash can if you want to.
And thats what it deserves. The discriminator denies discriminating in her
mailed-in testimony, where she wont even have the guts to come in here
and get on that witness stand, look you in the eye, and tell you why she did
what she did.
McGraw-Hills counsel attempted to explain Klinzings absence in closing
arguments. Minshalls counsel objected saying:
Judge, Im going to object to this; that Counsel knows full well why she
didnt show up, and this is not a good faith statement by counsel. Hes
represented to the Court why shes declined to come.
The district court overruled the objection.
Drawing from these trial incidents, McGraw-Hill contends the following
constitute reversible error: 1) Minshalls objection to the admission of Klinzings
deposition testimony; 2) statements made to the jury suggesting Klinzings
deposition testimony was not subject to cross-examination; 3) the district courts
failure to curb counsels arguments regarding Klinzings deposition testimony;
and 4) the argument, made in closing, that Klinzings deposition testimony be
disregarded.

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McGraw-Hill argues that Minshalls counsel improperly objected to the

admission of Klinzings deposition testimony because the district court had
previously ruled in a motion in limine that it was admissible. While McGraw-Hill
argues that the objection was already preserved, the objection was properly made
contemporaneous with the introduction of Klinzings deposition testimony. See
United States v. Mejia-Alarcon, 995 F.2d 982, 988 (10th Cir. 1993) (reasoning
that [p]rudent counsel will renew objections [ruled on by the district court in a
motion in limine] at trial . . . [because] most objections will prove to be
dependent on trial context and will be determined to be waived if not renewed at
trial). Therefore, Minshalls objection did not constitute reversible error.
McGraw-Hill also argues that the statements of Minshalls counsel to the
jury regarding his inability to cross-examine Klinzing constitute reversible error.
Minshalls counsel argued to the jury that he was unable to cross-examine
Klinzing under oath. He was, however, able to cross-examine Klinzing during her
deposition testimony. McGraw-Hill did not object to counsels statements at trial.
Moreover, the district court instructed the jury that [t]o the extent that youre
able, of course, youre instructed that you should give the testimony of Miss
Klinzing the same weight and credibility as you would as if she had appeared at
the trial. Therefore, the district court did not abuse its discretion, and, even

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assuming the statements of Minshalls counsel constituted error, such error was
harmless.
Finally, McGraw-Hill argues that the arguments made in closing,
suggesting that Klinzings deposition testimony be disregarded, and the district
courts failure to curb Minshalls counsel constitute reversible error. While
McGraw-Hill raised the issue of what constituted permissible commentary
regarding Klinzings deposition in pre-trial discussions with the district court,
McGraw-Hill failed to object to comments in closing argument, failed to move for
a mistrial or new trial prior to the return of the verdict, and failed to offer a
proposed corrective instruction. Although this court will correct error in rare
instances where it appears that a verdict was the result of passion aroused through
extreme argument which clearly stirred the resentment and aroused the prejudice
of the jury even though no objection was made or exception taken at the time,
this is not such a case. Sill Corp. v. United States, 343 F.2d 411, 421 (10th Cir.
1965) (quotation omitted). At closing, Minshalls counsel argued that the jury
should consider Klinzings failure to testify in person at trial when evaluating her
testimony. The district court ultimately instructed the jury to [c]onsider each
witness intelligence, motive, state of mind, demeanor and manner while on the
stand. Minshalls argument pertained to the manner in which Klinzing
testified and was, therefore, permissible under the pertinent jury instruction to
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which there was no objection. Even assuming that Minshalls arguments were
improper, the district court further instructed the jury that the [s]tatements and
arguments of counsel . . . are not evidence, and that [t]o the extent that youre
able, of course, youre instructed that you should give the testimony of Miss
Klinzing the same weight and credibility as you would as if she had appeared at
the trial. Because the jurys verdict is supported by the record and the district
court gave proper limiting jury instructions, this court is satisfied that the verdict
was not merely a result of passion aroused though extreme argument. See Sill
Corp., 343 F.2d at 421.
2. Co-Workers Testimony
a. Opinions regarding age discrimination at KMGH
At trial, Minshall introduced the testimony of Lynn, Bjorkman, and Allen
who opined that they were subjected to age discrimination at KMGH while
Klinzing was employed. McGraw-Hill argues that the district court abused its
discretion in admitting this testimony because it was irrelevant and unduly
prejudicial.
The testimony of employees, other than plaintiff, is relevant in assessing
the employers discriminatory intent if the employees testimony can logically or
reasonably be tied to the adverse employment action taken against the plaintiff.
See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1217 (10th
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Cir. 1998); see also Sanjuan, 160 F.3d at 1297. McGraw-Hill argues that the
testimony of Lynn, Bjorkman, and Allen is irrelevant because none of them were
terminated by Klinzing and each testified that they believed they were
discriminated against because of their on-air appearance. McGraw-Hill argues
that, in contrast, Klinzing praised Minshall for his on-air work.
Contrary to McGraw-Hills argument, the testimony of Lynn, Bjorkman,
and Allen is logically or reasonably tied to KMGHs decision not to renew
Minshalls contract. Klinzing was responsible for establishing the Real Life,
Real News format and for supervising Lynn, Bjorkman, Allen, and Minshall.
Moreover, Klinzing made the decisions to remove Lynn and Bjorkman from the
ten oclock nightly news report, to move Allen to less favorable reporting
assignments, and to not renew Minshalls contract.
McGraw-Hill also argues that Lynn, Bjorkman, and Allens testimony was
unduly prejudicial and confusing and should have been excluded under Rule 403
of the Federal Rules of Evidence. As discussed above, the circumstances
surrounding Lynn, Bjorkman, and Allens employment were substantially similar
to the circumstances surrounding Minshalls employment prior to the non-renewal
of his contract. Accordingly, this testimony was probative of McGraw-Hills
discriminatory intent. Moreover, McGraw-Hill fails to articulate how Lynn,
Bjorkman, and Allens testimony confused the jury. After reviewing the record,
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this court is satisfied that the district court did not abuse its discretion in ruling
that the testimony was not unduly prejudicial.
Accordingly, because Lynn, Bjorkman, and Allens testimony was relevant
and not unduly prejudicial, the district court did not abuse its discretion in
admitting the testimony.
b. Opinions regarding Minshalls work
At trial, Lynn, Bjorkman, Allen, and Sobel testified that they believed
Minshall was a good reporter. McGraw-Hill argues that the district court abused
its discretion in admitting this testimony because these individuals did not
supervise Minshall and, therefore, did not have a basis for their opinions.
Minshall argues that Lynn, Bjorkman, Allen, and Sobel based their opinions on
their personal observations of Minshalls work at KMGH.
Lynn, Bjorkman, Allen, and Sobel each had the opportunity to observe
Minshalls work while at KMGH. Lynn and Bjorkman testified that they used
Minshalls scripts. Allen and Sobel also worked with Minshall and had the
opportunity to observe his reporting. Accordingly, Lynn, Bjorkman, Allen, and
Sobel had a professional basis for their opinions of Minshalls work.
Further, the district court instructed the jury as follows:
The opinions of the plaintiffs coworkers regarding the plaintiffs job
performance are not necessarily relevant to your determination of whether
the defendants decisions for not renewing the plaintiffs employment
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contract was because of his age unless the coworker had a basis to evaluate
the plaintiffs performance.
In light of the basis for the testimony and the limiting instruction, the district
court did not abuse its discretion in admitting the testimony of Lynn, Bjorkman,
Allen, and Sobel.
3. Age-Related Comments
Minshall introduced several age-related statements made by Klinzing while
she was employed at KMGH. McGraw-Hill argues that the district court erred in
admitting these statements because they were stray comments and were unduly
prejudicial.
As discussed above, while Klinzings statement that old people should
die was a stray comment, the remainder of Klinzings comments were not stray.
The district court clearly did not abuse its discretion in admitting the latter and
the former did not prejudicially affect McGraw-Hill. See Sanjuan, 160 F.3d at
1296 (holding that this court will set aside a jury verdict only if the evidence
admitted in error prejudicially affects the opposing party such that it can be
reasonably concluded that . . . without such evidence, there would have been a
contrary result (quotations omitted)). Accordingly, the district courts admission
of Klinzings stray statement did not constitute reversible error.
Minshall also introduced an age-related, graphic comment made by Brad
Remington (Remington), a former managing editor at KMGH. McGraw-Hill
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argues that this statement should have been excluded as a stray comment because
Remington did not participate in the decision not to renew Minshalls contract.
Because age-related comments by non-decisionmakers are not material in
showing the [defendants] action was based on age discrimination, Remingtons
statement was a stray comment. Cone v. Longmont United Hosp. Assn, 14 F.3d
526, 531 (10th Cir. 1994). As with Klinzings stray comment, however, the
admission of Remingtons stray comment did not prejudicially affect McGrawHill and the district courts admission of the comment did not constitute
reversible error.
4. Cumulative Effect of Errors
McGraw-Hill argues that the cumulative effect of the errors in this case
mandates a new trial. Under the cumulative-error analysis, this court aggregates
all the errors that individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the outcome of the
trial is such that collectively they can no longer be determined to be harmless.
United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc). Even
after considering the cumulative effect of the admission of two stray comments
and comments made by Minshalls counsel on his inability to cross-examine
Klinzing, there is no basis on which to order a new trial.
C. Motion to Set Aside or Reduce the Judgment
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This court reviews the district courts ruling on a Rule 59(e) motion for
abuse of discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
Accordingly, this court will not reverse the decision of the district court unless
the district court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances. Id.
The jury awarded Minshall back pay in the amount $212,326.00 and found
that the award of back pay should not be reduced for earnings and benefits
acquired since Minshalls termination nor by any failure to mitigate damages. In
a post-trial order, the district court awarded Minshall front pay in the amount of
$137,500.00. McGraw-Hill argues that it is entitled to a reduction in the
judgment for front pay and back pay because Minshalls evidence of mitigation is
inadequate as a matter of law.
A claimant need only make a reasonable and good faith effort [to
mitigate], and is not held to the highest standards of diligence. Spulak v. K Mart
Corp., 894 F.2d 1150, 1158 (10th Cir. 1990). Moreover, the burden is on the
employer to establish that the claimant did not exercise reasonable diligence. Id.
While Minshall chose not to relocate his family, he made telephone calls and sent
letters to other television stations in Denver to obtain a job in investigative
reporting. After failing to obtain employment as an investigative reporter,
Minshall attempted to secure employment in public relations. BVP Media hired
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Minshall to teach media training. At BVP Media, Minshall earned approximately

$70,000 in salary and benefits. Minshall decided to quit this job after
approximately one year to work as a self-employed media trainer. While
McGraw-Hill argues that Minshall should have attempted to find an investigative
reporting job in the national market and should not have left his employment at
BVP Media to become self-employed, this court is not satisfied that Minshall
failed as a matter of law to make reasonable efforts to mitigate.
McGraw-Hill also argues that it is entitled to a reduction in the judgment
for front pay because there was insufficient evidence that Minshall would have
continued his employment at KMGH as an investigative reporter until his
retirement. McGraw-Hill, however, first raised this argument in its reply brief.
Therefore, this argument is waived. Coleman v. B-G Maint. Mgmt., 108 F.3d
1199, 1205 (10th Cir. 1997) (holding that [i]ssues not raised in the opening brief
are deemed abandoned or waived). Nevertheless, after reviewing the record, this
court is satisfied that the district court did not abuse its discretion in denying
McGraw-Hills motion to set aside or reduce the judgment for front pay.
IV.

CONCLUSION
For the foregoing reasons, this court affirms the district courts denial of

McGraw-Hills motions for JMOL, new trial, and to alter or amend the judgment
for front pay and back pay.
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